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The right of the expert appointed for a serious risk to be heard is binding on the employer

Cass. Soc. July 10, 2024, n°22-21.082

In a summer ruling, the Social Division of the French Supreme Court (Cour de cassation) clarifies the prerogatives of an expert appointed to deal with serious risks. 

In the facts of this case, the CHSCT (at the time) of a hospital decided to call in an accredited expert for an appraisal, on the basis of the former article L.4614-12 1° of the Labor Code, for serious risk revealed or not by an accident at work, an occupational disease or a disease of an occupational nature. In this context, the estimated cost of the appraisal included the expert’s hearing of 70 members of staff.

In order to obtain a reduction in the cost of the expert appraisal, including this hearing time, the employer referred the matter to the President of the Court of First Instance, who dismissed his claims.

Against this backdrop, the employer appealed to the French Supreme Court, arguing in particular that the expert had no power to interview company personnel.

In response, the Cour de cassation followed the position of the President of the Court of First Instance, affirming that an expert appointed in the context of an appraisal for serious risk, if he considers that the interviewing of certain company employees is useful to the accomplishment of his mission, may proceed on condition that he obtains the agreement of the employees concerned.

It adds that in the event of a challenge by the employer, it is up to the judge to assess the necessity of the hearings planned by the expert in the light of the expert’s mission.

Thus, even if the employer cannot object to the expert’s right to be heard, he may nevertheless contest the number of hearings and the necessity of each, in view of the circumstances of the case.

This decision by the Cour de cassation echoes a ruling handed down by the Social Division on June 28, 2023 (no. 22-10.293), in which, on this occasion, it was held that the employer could validly object to the hearing of personnel by the chartered accountant appointed by the CSE as part of the consultation on social policy, working conditions and employment.

A combined reading of these two recent decisions shows that the expert’s right to interview company employees is assessed differently, depending on the nature of his mission and the framework in which he is appointed. These new clarifications provide a clearer picture of the exact scope of the expert’s prerogatives.